The origins of political order

Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution

What importance do the civilizations of the ancient Mediterranean have for us? This question has been answered in different ways over the centuries, but for a long time the cultures of ancient Greece and Rome have been attractive as a baseline and a model, be it in economic, aesthetic, cultural, military, or political terms. Nowhere has the impact of the classics been more pronounced than in political theory: ideas about government and political order were first developed by Greek thinkers, and the institutions and laws of the Roman Republic and the Roman Empire have left far-reaching traces in European history.

While there had always existed a strand of thinking which admired the early Roman Republic for its military valor and its austere virtue, there had also developed a tradition with a very different focus on the late Roman Republic. Paradoxically, this tradition was interested first and foremost in the Republic’s crisis, civil wars and eventual collapse into military despotism. As an answer and remedy to crisis and civil war, thinkers belonging to this tradition developed a normative constitutional theory. This was the first time the concept of a normative constitution had ever been put forward in the history of political thought. Roman constitutional theory was thus sharply different from anything Greek thinkers had ever produced.

When in the late eighteenth century the American colonies and France experienced political upheaval, violence and revolution—in the name of a more consensual, egalitarian politics and self-government—the history of the republics of classical antiquity, especially the Roman Republic, provided a historical laboratory. Large territorial states in the eighteenth century were, as a rule, monarchies, which meant that apart from the Roman Republic, the Framers of the American Constitution had few precedents to go by. Seeking to establish political order based on self-government, the American Founders considered it to be a key task to inquire into the reasons why the Roman Republic had declined and fallen, after centuries of stability and success.

Declaration of Independence, a painting by John Trumbull depicting the Committee of Five presenting their draft of the Declaration of Independence to the Congress on June 28, 1776. Public Domain via Wikimedia Commons.

Assisted by a long tradition of Roman constitutional thought, the Founders concluded that it was a lack of entrenched constitutional institutions that was to blame for the Roman Republic’s collapse. With Cicero, this tradition insisted that constitutionalism, not virtue, was a necessary condition for political order. And like Cicero, the Founders wrestled with the hard cases on the fringes of constitutionalism, with emergencies and exceptions, seeking institutional solutions while discounting virtue. As a result of their engagement with the crises of the late Roman Republic, political theorists and writers from Bodin to Hobbes to Montesquieu and the Federalist, shared Cicero’s view of the importance of entrenched constitutional norms understood as legal norms. This account suggests, furthermore, that liberal constitutionalism, far from being oblivious to the problem of emergency rule and unprepared to deal with exceptions, really first emerged as a response to crisis and emergencies. This is how liberal constitutionalism was conceived and conceptualized in the first place: as an essentially legal answer to the extra-legal emergency powers of the collapsing Roman Republic.

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